• Asher Flynn
  • Arie Freiberg
Part of the Palgrave Socio-Legal Studies book series (PSLS)


In many jurisdictions, including Australia, the most frequent method of case finalisation is not one that follows a fiercely fought battle between state and defendant, but instead is the result of a negotiation between the prosecution and defence resulting in the defendant entering a guilty plea. This process is neither an alloyed benefit nor a detriment for defendants, victims or the criminal justice system generally. And while primarily justified for their pragmatic benefits, plea negotiations are largely misunderstood by those outside the legal community. This chapter presents an overview of the empirical study of plea negotiations in Australia (the first of its kind) that informs the book, including the study’s methodology and aims. It concludes with an overview of each of the chapters.


Plea negotiations Guilty plea Plea deals Plea bargaining 



  1. Baldwin, J & McConville, M 1977, Negotiated justice: pressures to plead guilty, Martin Robertson, London.Google Scholar
  2. Baldwin, J & McConville, M 1979, ‘Plea bargaining and the research dilemma’, Law and Policy Quarterly, vol. 1, pp. 223–33.CrossRefGoogle Scholar
  3. Bibas, S 2003, ‘Bringing moral values into a flawed plea bargaining system’, Cornell Law Review, vol. 88, pp. 1–11.Google Scholar
  4. Bibas, S 2012, ‘Incompetent plea bargaining and extrajudicial reforms’, Harvard Law Review, vol. 126, p. 150.Google Scholar
  5. Booth, T & Carrington, K 2007, ‘A comparative analysis of the victim policies across the Anglo-speaking world’, in S Walklate (ed.), Handbook on victims and victimology, pp. 280–415, Willan Publishing, Cullompton.Google Scholar
  6. Buckle, S & Buckle, L 1977, Bargaining for justice: case disposition and reform in the criminal courts, Praeger Publishers, New York.Google Scholar
  7. Buckman, R, Mohaghegh, T, Savage, H, Lim, A & Reynolds, H 2016, Equal Justice Project: Plea Bargaining in our Justice System. Available from: [accessed 26 January 2018].
  8. Bushway, S D, Redlich A D & Norris, R 2014, ‘An explicit test of plea bargaining in the “shadow of the trial”’, Criminology, vol. 52, no. 4, pp. 723–54.CrossRefGoogle Scholar
  9. Carol, A, Brook, B F, Harvey, D, Marcus, P, McEwan, J & Pomerance, R 2016, ‘A comparative look at plea bargaining in Australia, Canada, England, New Zealand, and the United States’, William and Mary Law Review, vol. 57, p. 1147.Google Scholar
  10. Champion, J 2014, ‘The importance of plea agreements: our approach and accountability’, paper presented at the 14th International Criminal Law Congress, Melbourne, 12 October. Available from: [18 January 2016].
  11. Clark, P 1986, ‘The public prosecutor and plea bargaining’, Australian Law Journal, vol. 60, no. 4, pp. 199–214.Google Scholar
  12. Cook, B, David, F & Grant, A 1999, Victims’ needs, victims’ rights: policies and programs for victims of crime in Australia (Research and Public Policy Series #19). Australian Institute of Criminology, Canberra.Google Scholar
  13. Dixon, J 1996, ‘Rights of victims’, paper presented at Prosecuting Justice. Melbourne, Australia, 18–19 April, Australian Institute of Criminology, Canberra.Google Scholar
  14. Douglass, J 1988, Ethical issues in prosecution, National College of Dallas, Houston University Law Centre, Texas.Google Scholar
  15. Dubber, M D 1997, ‘American plea bargains, German lay judges & the crisis of criminal procedure’, Stanford Law Review, vol. 49, p. 547.CrossRefGoogle Scholar
  16. Euvrard, E & Leclerc, C 2017, ‘Pre-trial detention and guilty pleas: Inducement or coercion’, Punishment and Society, vol. 19, no. 5, pp. 525–542.Google Scholar
  17. Feeley, M M 1979, The process is the punishment: Handling cases in a lower criminal court, Russell Sage Foundation, New York, NY.Google Scholar
  18. Flatman, G & Bagaric, M 2001, ‘The victim and the prosecutor’, Deakin University Law Review, vol. 6, no. 1, pp. 238–54.Google Scholar
  19. Flynn, A 2010b, ‘Victoria’s Legal Aid funding structure: hindering the ideals inherent to the pre-trial process’, Criminal Law Journal, vol. 34, no. 1, pp. 48–63.Google Scholar
  20. Flynn, A 2011, ‘“Fortunately we in Victoria are not in that UK situation”: Australian and United Kingdom perspectives on plea bargaining reform’, Deakin Law Review, vol. 16, no. 2, pp. 361–404.CrossRefGoogle Scholar
  21. Flynn, A 2012, ‘Bargaining with justice: victims, plea bargaining and the Victims’ Charter Act 2006 (Vic)’, Monash University Law Review, vol. 37, no. 3, pp. 73–96.Google Scholar
  22. Flynn, A 2016, ‘Plea negotiations, prosecutors and discretion: an argument for legal reform’, Australian and New Zealand Journal of Criminology, vol. 49, no. 4, pp. 564–82.CrossRefGoogle Scholar
  23. Flynn, A & Hodgson, J 2017a (eds) Access to justice & legal aid: comparative perspectives on unmet legal needs, Hart Publishing, Oxford.Google Scholar
  24. Fountain, E N & Woolard, J L 2017, ‘How defense attorneys consult with juvenile clients about plea bargains’, Psychology, Public Policy, and Law, doi: Scholar
  25. Gazal-Ayal, O & Tor, A 2012, ‘The innocence effect’, Duke Law Journal, vol. 62, pp. 339–401.Google Scholar
  26. Gerstein, R 1981, ‘Plea bargaining: an overview’, in M Edwards & K Meyer (eds), Settlement and plea bargaining: published for the association of trial lawyers America, pp. 276–86, Association of Trial Lawyers America, National College of Advocacy, Washington.Google Scholar
  27. Johns, R 2002, Victims and plea bargaining: victims of crime – plea bargains, compensation, victim impact statements and support services briefing paper. Available from: [accessed 18 January 2016].
  28. JUSTICE 1993, Negotiated justice: a closer look at the implications of plea bargains, JUSTICE Publications, London.Google Scholar
  29. King, M, Freiberg, A, Batagol, B & Hyams, R 2014, Non-adversarial justice, The Federation Press, Sydney.Google Scholar
  30. King, N & Wright, R 2016, ‘The invisible revolution in plea bargaining: Managerial judging and judicial participation in negotiations’, Texas Law Review, vol. 95, pp. 325–397.Google Scholar
  31. Krauss, R 2009, ‘The theory of prosecutorial discretion in federal law: origins and development’, Seton Hall Circuit Review, vol. 6, no. 1, pp. 1–8.Google Scholar
  32. Leivore, D 2004, Prosecutorial decisions in adult sexual assault cases: An Australian study, Office of the Status of Women, Canberra.Google Scholar
  33. Mack, K & Roach Anleu, S 1995, Pleading guilty: issues and practices, Australian Institute of Judicial Administration, Victoria.Google Scholar
  34. Mackenzie, G, Vincent, A & Zeleznikow, J 2015, ‘Negotiating about charges and pleas: balancing interests and justice’, Group Decision and Negotiation, vol. 24, no. 4, pp. 577–94.CrossRefGoogle Scholar
  35. Manikis, M 2012, ‘Recognizing victims’ role and rights during plea bargaining: a fair deal for victims of crime’, Criminal Law Quarterly, vol. 58, no. 3–4, p. 411.Google Scholar
  36. Maynard, D 1984, Inside plea bargaining: the language of negotiation, Plenum Press, New York.CrossRefGoogle Scholar
  37. McConville, M 2002, ‘Plea bargaining’, in M McConville & G Wilson (eds), The handbook of the criminal justice process, pp. 353–79, Oxford University Press.Google Scholar
  38. McConville, M 2007, ‘Development of empirical research techniques and theory’, in M McConville & W Hong Chui (eds), Research Methods for Law, pp. 207–29, Edinburgh University Press, Edinburgh.Google Scholar
  39. McConville, M & Marsh, L 2014, Criminal judges: legitimacy, courts and state-induced guilty pleas in Britain, Edward Elgar Publishing, Cheltenham.CrossRefGoogle Scholar
  40. McConville, M & Mirsky, C 2005, Jury trials and plea bargaining: a true history, Hart Publishing, Oxford.Google Scholar
  41. Morris, N 1977, ‘Sentencing and parole’, Australian Law Journal, vol. 51, no. 3, pp. 523–31.Google Scholar
  42. Powell, A, Henry, N, Flynn, A & Henderson, E 2013, ‘The meanings of sex and consent: the persistence of rape myths in Victorian rape law’, Griffith Law Review, vol. 22, no. 2, pp. 456–80.CrossRefGoogle Scholar
  43. PricewaterhouseCoopers 2008, Review of fees paid by Victoria Legal Aid barristers in criminal cases, Victorian Bar. Available from: [accessed 18 January 2016].
  44. Rakoff, J S 2014, ‘Why innocent people plead guilty’, NY Books, November 20 issue. Available from: [accessed 18 January 2016].
  45. Redlich, A D, Wilford, M M & Bushway S 2017, ‘Understanding guilty pleas through the lens of social science’, Psychology, Public Policy and Law, vol. 23, pp. 458–471.CrossRefGoogle Scholar
  46. Royal Commission into Institutional Responses to Child Sexual Abuse 2017a, Criminal Justice Report: Executive Summary and Parts 1–II, Royal Commission, Sydney.Google Scholar
  47. Russell, J & Hollander, N 2017, ‘The disappearing trial – the global spread of incentives to encourage suspects to waive their right to a trial and plead guilty’, New Journal of European Criminal Law, vol. 8, no. 3, pp. 309–322.CrossRefGoogle Scholar
  48. Utz, P 1978, Settling the facts, Lexington Books, Canada.Google Scholar
  49. Verdun-Jones, S 2011, ‘Plea bargaining’, in J Roberts & M Grossman (eds), Criminal justice in Canada, (4th edn), pp. 168–84, Nelson Education, Canada.Google Scholar
  50. Victoria Legal Aid [VLA] 2014b, Delivering high quality criminal trials: consultation and options paper, VLA, Melbourne.Google Scholar
  51. Victorian Sentencing Advisory Council [SAC] 2015, Guilty pleas in the higher courts: rates, timing, and discounts, Sentencing Advisory Council, Melbourne.Google Scholar
  52. Victorian Sentencing Advisory Council [SAC] 2016a, Sentencing Trends 2016, VSAC, Melbourne. Available from: [accessed 18 January 2016].
  53. Westling, W 1976, ‘Plea bargaining: a forecast for the future’, Sydney Law Review, vol. 7, no. 3, pp. 424–432.Google Scholar
  54. Winick, B J 1999, ‘Redefining the role of the criminal defence lawyer at plea bargaining and sentencing: A therapeutic jurisprudence/preventive law model’, Psychology, Public Policy, and law, vol. 5, pp. 1034–1083.CrossRefGoogle Scholar
  55. Woolard, J L, Henning, K & Fountain, E 2016, ‘Power, process, and protection: juveniles as defendants in the justice system’, Advances in Child Development and Behaviour, vol. 51, pp. 171–201.CrossRefGoogle Scholar
  56. Wren, E & Bartels, L 2014, ‘“Guilty, Your Honour”: recent legislative developments on the guilty plea discount and an Australian Capital Territory case study on its operation’, Adelaide Law Review, vol. 35, pp. 361–84.Google Scholar

Copyright information

© The Author(s) 2018

Authors and Affiliations

  • Asher Flynn
    • 1
  • Arie Freiberg
    • 1
  1. 1.Monash UniversityClaytonAustralia

Personalised recommendations